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Miti Bewa Vs. Daitari Nayak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 359 of 1977
Judge
Reported inAIR1982Ori174
ActsEvidence Act, 1872 - Sections 101 to 104; Contract Act, 1872 - Sections 16
AppellantMiti Bewa
RespondentDaitari Nayak and ors.
Appellant AdvocateS. Misra, Adv. No. 2 and ;N.K. Acharya, Adv.
Respondent AdvocateS. Misra, Adv. No. 1, ;S.K. Nayak, ;D.P. Sarangi, ;J.M. Mohanty and ;B. Das, Advs.
Cases Referred and Agadhei Malikani v. Abhimanyu Mallik
Excerpt:
.....co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in good faith, she executed a document in favour of defendant no. 1. she continued to enjoy and possess the property left by her husband till in 1975 her possession was disturbed and on enquiry she learned that on the pretext of the power-of-attorneya sale deed was taken from her on 20-2-1961 and defendant no. the complaint of the parties before me is well-warranted. the burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. the lower appellate court would do well..........title to the property and for confirmation of possession and injunction and for setting aside the sale deeds executed by defendant no. 1 in favour of defendant no. 2 and the sale deed in favour of defendant no. 6.2. the plaintiff alleged that she was the heir of the property left by her husband, her son having had a premature death. defendant no. 1 has married her eldest daughter. after the death of her son, defendant no. 1, her son-in-law came to live in her house and looked after her. some time later, he asked her to execute a power-of-attorney for facility of management of her property. in good faith, she executed a document in favour of defendant no. 1. she continued to enjoy and possess the property left by her husband till in 1975 her possession was disturbed and on enquiry she.....
Judgment:

R.C. Patnaik, J.

1. This is a plaintiff's second appeal against the confirming decisions of the courts below, arising out of a suit for declaration of title on declaration that defendant No. 1 had no title to the property and for confirmation of possession and injunction and for setting aside the sale deeds executed by defendant No. 1 in favour of defendant No. 2 and the sale deed in favour of defendant No. 6.

2. The plaintiff alleged that she was the heir of the property left by her husband, her son having had a premature death. Defendant No. 1 has married her eldest daughter. After the death of her son, defendant No. 1, her son-in-law came to live in her house and looked after her. Some time later, he asked her to execute a power-of-attorney for facility of management of her property. In good faith, she executed a document in favour of defendant No. 1. She continued to enjoy and possess the property left by her husband till in 1975 her possession was disturbed and on enquiry she learned that on the pretext of the power-of-attorneya sale deed was taken from her on 20-2-1961 and defendant No. 1 later on alienated property in favour of defendant No. 1 and a sale deed was obtained by defendant No. 6. She alleged that she had no idea that a sale deed was taken because she was throughout in possession.

3. Defendant No. 9 was a co-sharer of the plaintiff's husband. He and defendant No. 1 filed joint written statement supporting the case of the plaintiff. Defendant No. 1 stated that the sale deed executed by the plaintiff in his favour was a sham document and he did not acquire any right, title or interest. Defendants 2, 3, 5 and 6 filed a joint written statement stating that defendant No. 1 had joined hands with the plaintiff with a view to depriving them of their property. Plaintiff knowingly executed the sale deed which was acted upon and various purchases were made by them from defendant No. 1 and so on the title was unimpeachable and they were in possession.

4. The trial Court recorded a finding that defendant No. 1 was in an advantageous position to prevail upon the plaintiff and the onus was on the purchasers to prove that the documents were duly executed by the plaintiff. It further found that defendant No. 1 had furnished no explanation as to under what circumstances he obtained the sale deed instead of power-of-attorney. The question of delivery of possession was not important as defendant No. 1 was staying in the house of the plaintiff. Having regard to the relationship, the low consideration, i.e., Rs. 300 for 2.70 acres was not material and the sale deed Ext. B was duly executed by the plaintiff. The suit was also barred by limitation. The appellate Court found that the suit was barred by limitation, the suit having been filed beyond 12 years from the time of transfer by defendant No. 1. The question of adequacy of consideration was irrelevant. The transfers by defendant No. 1 in favour of defendant No. 2 and others were valid and the plaintiff had no title to the property.

5. The appellate judgment, to say the least, is confused, unclear and perfunctory. The complaint of the parties before me is well-warranted. Issues have been jumbled up and the discussion is not clear.

6. The approach to the evidence does not appear to have been made keeping the perspective of the law in the background nor does there appear a discussion of the law applicable.

7. Admittedly the plaintiff is an illiterate lady. Her thumb impression onExt. b is eloquent testimony in support. Defendant No. 1 is the son-in-law. He lives with the plaintiff for a score of years and more, manages the household and looks after the property. He had the capacity and occasion to influence, prevail upon. Naturally the mother-in-law was his ward and the relationship was one of trust. 2.70 acres were taken under Ext. B, the registered sale deed, by the son-in-law from the mother-in-law for a consideration of Rs. 300. The plaintiff impugned the transaction of 1961 on 3-9-1975. The law is clear. In Mst. Kharbuja Kuer v. Jang Bahadur Rai (AIR 1963 SC 1203) it was held:

'As regard documents taken from pardanashin women (illiterate ladies have been equated with pardanashin women by judge-made law) the court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a paradanashin woman. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. It should be established that it was not her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it but also by other evidence, direct and circumstantial.'

8. As I am inclined to remand the matter to the lower Appellate Court for rehearing of the Appeal and disposal, I am refraining from making any observation which might fetter an independent determination by the lower Appellate Court. Suffice it, I draw attention to a few decisions. The lower Appellate Court would do well to refer to the same and decide the case according to the principles laid down therein. Reference may be made to Chandhala Bewa v. Madhab Panda (1960-26 Cut LT 304) : (AIR 1961 Orissa 100); Dharanidhar Jena v. Pranakrushna Sahu, (1977-2 Cut WR 730); Kotni v. V. R. L. Murty (AIR 1961 Orissa 180) and Agadhei Malikani v. Abhimanyu Mallik (1968-34 Cut LT 874).

9. The learned lower Appellate Court should independently assess and appreciate the evidence and express firm opinion on the questions involved and not inthe halting way the findings have been recorded in the judgment impugned.

10. In the result, the judgment of the lower Appellate Court is set aside and the matter is remitted to it for disposal afresh keeping in mind the observations made in this judgment. The appeal be expeditiously disposed of. Costs shall abide the results.


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